Thomas v. Ponder, 09-15522.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtREINHARDT, Circuit
Citation611 F.3d 1144
PartiesOtis Michael THOMAS, Plaintiff-Appellant,v.G. PONDER; M.J. Kircher; M.S. MMC Evans, Defendants-Appellees.
Docket NumberNo. 09-15522.,09-15522.
Decision Date16 July 2010

611 F.3d 1144

Otis Michael THOMAS, Plaintiff-Appellant,
G. PONDER; M.J. Kircher; M.S. MMC Evans, Defendants-Appellees.

No. 09-15522.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted April 7, 2010.
Filed July 16, 2010.

611 F.3d 1145
Jeremy Maltby and Jonathan Wells Monson (argued), O'Melveny & Myers, LLP, Los Angeles, CA; Rebecca S. Hekman (argued), UCLA School of Law Ninth Circuit Clinic, Los Angeles, CA, for the plaintiff-appellant.

Edmund G. Brown, Jr., Rochelle C. East, Thomas S. Patterson, Neah Huynh (argued), Office of the California Attorney General, San Francisco, CA, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, Senior United States District Judge, Presiding. D.C. No. 3:06-cv-03581-MMC.

Opinion by Judge REINHARDT; Opinion by Judge FREIEDMAN.
REINHARDT, Circuit Judge:

Otis Thomas brought this suit seeking to establish that prison officials (individually and collectively “prison officials”) violated his Eighth Amendment rights by denying him outdoor exercise for 13 months and 25 days while he was in a maximum security

611 F.3d 1146
housing unit. The prison officials conditioned Thomas's access to outdoor exercise upon his signing a “pledge form” promising that he would not engage in violence while participating in prison programs. Thomas signed contemporaneous interview forms promising to “program non-violently” but refused to sign the pledge form itself. The prison officials insisted that only the pledge form would do and continued to refuse to allow him any opportunity to exercise until he signed the form.

The district court granted summary judgment for the prison officials on Thomas's 42 U.S.C. § 1983 claim. It concluded that the denial of out-of-cell exercise for such an extended period of time was “sufficiently serious” to constitute a valid Eighth Amendment claim, but held that Thomas failed to demonstrate that there was a genuine issue of material fact as to whether the prison officials had acted with “deliberate indifference.” First, it concluded that Thomas had failed to show that the prison officials believed that the risk of harm to Thomas's health was other than “insubstantial or nonexistent.” Second, it concluded that there was insufficient evidence to establish that the prison officials acted unreasonably. The district court concluded that the prison officials' deprivation of Thomas's right to exercise was reasonable because of Thomas's disciplinary history and the “genuine emergency” at the prison, and because Thomas had the opportunity to sign the pledge form at any time, and upon signing would have been permitted to exercise out-of-cell.

We agree with the district court's conclusion that the prison officials' denial of out-of-cell exercise for such an extended period of time was “sufficiently serious” to constitute a valid Eighth Amendment claim, but reject the district court's other rulings. We hold that as a matter of law the serious risk to Thomas's health posed by this extended deprivation of a basic human necessity was “obvious” to the prison officials. We also hold that a material factual issue exists as to whether the prison officials' actions were reasonable, in light of Thomas's limited disciplinary record, the security conditions at the prison for the last 11 of the 14 months that Thomas was deprived of exercise, and the prison officials' willingness to allow Thomas to resume the regular course of exercise upon signing the formal pledge form. We therefore reverse the district court and remand for further proceedings.


Otis Thomas (“Thomas”) was a prisoner housed in Facility C at the Salinas Valley State Prison (“SVSP”) in 2005-06. Facility C is a level IV maximum security housing unit with the SVSP. Inmates are housed in Facility C for a variety of reasons, including “a history of assaultive behavior and disciplinary actions, gang-related convictions, and lengthy or life sentences.” On July 14, 2005, a Facility C inmate using a homemade knife stabbed and seriously wounded two correctional officers.1 In response, the prison officials placed the SVSP on lockdown from July 14, 2005 to September 9, 2005.2 On September 9, 2005, prison officials introduced a “modified program” allowing “non-contact visits only, suspended quarterly

611 F.3d 1147
packages and curtailed outdoor recreation.” Under this modified program, prisoners were deprived of all out-of-cell exercise, fed in their cells, subjected to strip searches, and, on the rare occasions that they were permitted to leave their cells, were escorted in restraints.

On October 17, 2005, the Captain of Facility C, G. Ponder, sent a memorandum to the Facility C inmates that explained what they would be required to do in order to return from the “modified” program to a “normal” program. The memorandum stated, in relevant part:

I am developing a process to help the facility work towards providing inmates that want to program without violence an opportunity to do so. The choice to program will be in the hands of each individual inmate. The first step in this process will be interviews. The next step will be your commitment to program without violence and verification of this commitment by signing that fact. The next process will involve Correctional Officers identifying inmates that have shown willingness to program and providing a list of those inmates to supervisory staff. Inmates that fail to act in accordance with Departmental rules and Institution procedures will result in housing and program changes. Inmates are advised that their privileges and access to programs will be curtailed until you as an individual successfully comply with this process.

Ponder's program involved interviewing each inmate at least twice. At each interview, the interviewee was required to sign a “pledge” that he was willing to follow the proposed program without violence. Inmates whom the prison deemed “willing to program without violence” were typically returned to “normal” programming after their initial interview or signing of the pledge form. Ponder explained, in a sworn declaration, that once an inmate signed the pledge his return to normal programing was also dependent upon prison officials undertaking a review of his case to affirm that “no other factors evidence a propensity for violence.” Inmates who refused to sign the pledge, declined interviews, or were otherwise deemed to have not participated “meaningfully” in the interview process remained on “modified” program status.

In accordance with this review policy, prison officials interviewed Thomas several times between August 2005 and June 2006. Before beginning these interviews, prison officials instructed Thomas to fill out forms. Thomas answered all of the questions on these interview forms and then he and a prison official signed all of the forms. The interview forms were all identical and all included the following statement and question: “Programming on a level IV general population yard requires participation without violence. Are you willing to commit to this type of program? If no, give details?” In response to this question Thomas wrote “Yes.” Another question was “Do you have any safety concerns?” to which Thomas answered “No.” The question “If the facility were returned to normal program, could you program without violence on a level IV general population yard with inmates from all races/ethnics [sic] or past or present gang affiliations?” also appeared on each form, and in response to this question Thomas also answered “Yes.”

After Thomas signed the forms, prison officials conducted the interviews. During the interviews, prison officials gave Thomas a pledge form and instructed him to sign. The pledge form stated:

I am currently housed within Facility ‘C’ Salinas Valley State Prison. I am also aware that this facility is on a modified program status based upon several acts
611 F.3d 1148
of violence having occurred within the past 15 months.
By signing this document, I am advising staff that I want to participate in the program review process being implemented at this time. I am also stipulating that I want to “do my own time” and will program by not participating in gang violence.
I have been advised that my failure to act in accordance with institutional rules and procedures may result in program and housing changes. I am aware that during the time I participate in the program review process, I will retain my established work/privilege group.
I am aware, if I am unassigned and I participate in the program review process that my participation does not constitute a credit earning assignment. Further, I understand that my privileges and access to programs will be curtailed until I successfully complete this program and am returned to normal general population program status.
I have been advised that the program review process is ongoing and that I will be expected to maintain compliance with regulations to participate. During the program review process I will be required to interact with other inmates of all races and ethnicity during all out of cell activities. The process and my participation in it, is on-going and monitored.[sic] During this period I understood that my progress and suitability to remain in the program will be monitored and evaluated by staff.

Thomas was later unable to recall whether he was asked to sign the pledge form at every interview, but he stated that on each occasion that he was asked to sign, he refused to do so.3 The prison refused to release Thomas from the modified program and continued to deny him access to the outdoor exercise yard, because he would not sign the pledge. A Correctional Lieutenant in Facility C, Lieutenant J. Celaya, subsequently explained that, because Thomas refused to sign the pledge, he “posed an...

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